Part four

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Case studies

Review of actions under the Public Service Regulations—Credibility of primary or internal review process

Application

An APS employee applied for secondary review, by the Merit Protection Commissioner, of the decision not to approve her undertaking a particular training course. When that decision was first reviewed within the relevant agency, the primary or internal review delegate:

found that the decision was made on invalid grounds, essentially because it was made for reasons unrelated to the applicant’s training needs
said that, given that the primary reason for the decision was invalid, it was inappropriate to seek to rely on secondary reasons to prevent the applicant from training
strongly recommended that the applicant be permitted to undertake the next available course.

The applicant applied for secondary review by the Merit Protection Commissioner because her line management was unwilling to acknowledge the findings of the primary review and implement its recommendation.

Review

The Merit Protection Commissioner was concerned that the procedures for reviewing actions in the agency should operate generally in a manner consistent with section 33 of the Public Service Act and, in particular, Public Service Regulation 5.1 (General policy about review), namely:

It is the policy of the Australian Government that APS Agencies should achieve and maintain workplaces that encourage productive and harmonious working environments.
It is intended that this Part should provide for a fair system of review of APS actions.
Employees’ concerns are intended to be dealt with quickly, impartially, and fairly.

In this context, according to the Australian Standard on prevention, handling and resolution of disputes (AS 4608–1999, p.8) and the Australian Standard on complaints handling (AS 4269–1995, p.6), respectively:

You need to have a clear policy on dispute prevention, handling and resolution which is understood by all your employees and associates.

A complaints handling process shall have the capacity to determine and implement remedies.

Consequently, the Merit Protection Commissioner advised the agency’s national office that in an effective, credible internal or primary review system:

applicants would not be advised of the outcome of a review until after the matter was decided by a competent delegate of the agency head, that is one delegated under the Public Service Regulations to make such decisions
other people would not be able to overrule the review delegate, particularly after the applicant for review has been advised of the outcome of the review.

Outcome

On 31 May 2005, noting the passage of time and the possibility that the particular course in question may not be available in the foreseeable future, the Merit Protection Commissioner recommended to the agency that, as far as practicable, the primary review delegate’s finding and recommendations be implemented and appropriate support and advice be given to the applicant and her line management.

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Breach of the APS Code of Conduct—Issues relating to retention of records and disclosure

Application

An APS employee applied for review of a decision that he had breached the APS Code of Conduct and of the sanctions imposed on him for that breach—a reprimand and re-assignment of duties to another job of the same classification but at another location. In addition, the relevant agency told the applicant that:

a copy of the record of the reprimand would be placed upon his ‘personnel file’ and retained for the period of two years
even after that period, he would be obliged to disclose that he had an ‘Official Conduct Record’ (for example, in connection with a job application or security clearance).

Review

Having reviewed the matter, the Merit Protection Commissioner was reasonably satisfied that the applicant had breached the APS Code of Conduct and that the sanctions imposed on him were not unreasonable. However, the Merit Protection Commissioner was concerned about the agency’s record-keeping practices and the advice given to the applicant about his purported obligation, seemingly for an indefinite period, to disclose that he had an ‘Official Conduct Record’.

In relation to the first issue:

as set out on page 17 of Managing Breaches of the APS Code of Conduct (re-published by the Public Service Commissioner in August 2002), records relating to misconduct should not be placed on the employee’s personal file, but rather on a separate misconduct action file or, where appropriate, an investigation file (the existence of a separate misconduct file should, however, be made apparent on the personal file, for example, by cross-reference)
the Administrative Functions Disposal Authority (published by the National Archives of Australia in February 2000) provides that all records documenting investigations of misconduct which result in a disciplinary action being taken are to be retained for five years.

As for the second issue, the advice given to the applicant was in conflict with the general principle that individuals who have been subject to disciplinary action should not have their previous misconduct held against them indefinitely. At the expiration of the relevant period, providing there have been no new breaches of the Code of Conduct during that period, the record of the action taken against an employee should be destroyed and the employee concerned should no longer be taken to have a misconduct record. As set out in paragraph D.6.20 of the Commonwealth Protective Security Manual (October 2000), the same general principle also applies, under the Commonwealth Spent Convictions Scheme, to convictions for criminal offences—and most of these are usually more serious than most disciplinary breaches and must be proved beyond reasonable doubt.

Outcome

The applicant’s agency has amended its practice of holding misconduct information on personnel files and now keeps separate records of misconduct investigations for case management and reporting purposes. The agency has also reviewed its recruitment and security procedures in relation to requiring staff to disclose prior misconduct and they are now consistent with the principles of the Commonwealth Spent Convictions Scheme.

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Breach of the APS Code of Conduct—Sending an offensive email

Application

An APS employee applied for review of a decision that, by sending a rather offensive email, he breached the APS Code of Conduct and of the sanctions imposed on him for that breach—a reprimand and reduction in classification from APS level 3 to APS level 2. While he later accepted that he had breached the Code, he originally argued that he could not have breached section 13(3) of the Public Service Act, which provides that:

An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.

This was, he said, because he did not send the email to the person described in it and she may not even have become aware of the email. In effect, as she was not a party to that exchange, it could not be said that he ‘treated’ her without respect and courtesy, and without harassment, as required by section 13(3).

Review

As far as it went, this was not an unarguable proposition. In fact, a somewhat similar view was expressed by the Australian Industrial Relations Commission (AIRC) in a case decided in February 2003. However, in a later case, in November 2004, a differently constituted AIRC said that sending disrespectful emails about another APS employee amounted to a prima facie breach of the Code of Conduct. In any event, the email in question was highly offensive and probably defamatory.

Generally, to make, without lawful justification, a derogatory statement about a person, lowering that person’s reputation in the eyes of reasonable members of the community, or leading people to avoid, ridicule or despise that person, or which has a tendency to injure that person’s reputation in office, profession, business or trade, is to defame them. To defame a person is to breach the laws of defamation which, in Australia, are a mixture of common law and state or territory law. Not to comply with an applicable Australian law when acting in the course of APS employment is to breach section 13(4) of the Public Service Act, which states that:

An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:

any Act (including this Act), or any instrument made under an Act; or
any law of a State or Territory, including any instrument made under such a law.

In the Merit Protection Commissioner’s opinion, the suggestions the applicant made in his email about another APS employee were defamatory in that they ridiculed that person, were likely to make others think less of them, and might also have injured them in their employment. Consequently, even if, by sending that email, he did not breach section 13(3) of the Public Service Act, he breached section 13(4). In this context, in Department of Health and Human Services v Beveridge (23 February 2004, M330/2003, at 16-18), the court held that, for the purposes of disciplinary proceedings, the Tasmanian State Service Commissioner could determine whether an employee failed to comply with an Australian law, regardless of whether any prior decision-making had taken place in relation to the same question.

Moreover, when the applicant sent that email, he also breached section 13(8) of the Act, by failing to use Commonwealth resources in a proper manner.

As for the sanctions imposed on the applicant, they were, in the Merit Protection Commissioner’s opinion, well within the range of sanctions one could reasonably expect for such a serious breach of the APS Code of Conduct and were not inappropriate.

Outcome

As recommended by the Merit Protection Commissioner, the applicant’s agency confirmed the decisions under review.

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Breach of the APS Code of Conduct—Multiple breaches and several sanctions

Application

An APS employee applied for review of a decision that, in six different ways, he breached two elements of the APS Code of Conduct and of the three sanctions imposed on him for those breaches. The six alleged breaches were that the applicant:

told a client that he too had no confidence ‘in the system’
spoke inappropriately [loudly] to a client
displayed inappropriate behaviour towards a client by being abrupt and cutting the client off
transferred inappropriately clients’ calls within his topic boundary and calls which should have gone to another business line
failed to apply the ‘relationship management model’
was frequently late for work.

Review

The decision declared that, by committing the abovementioned six acts, the applicant breached the following elements of the APS Code of Conduct:

13(1) An APS employee must behave honestly and with integrity in the course of APS employment.

13(5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.

However, the decision failed to explain which of the applicant’s acts breached which of these elements of the Code or how. Also, to find that a person has failed to act honestly and with integrity is a serious matter not to be done lightly, especially in a case where there was no proof of intention to act dishonestly. In this context, there is a difference between:

section 13(1) of the Public Service Act which requires APS employees to behave ‘honestly and with integrity’ in the course of their employment
section 13(11) of the Public Service Act which requires them to behave at all times in a way that upholds ‘the integrity and good reputation’ of the APS.

On review, while the Merit Protection Commissioner was reasonably satisfied that the applicant had committed the alleged acts, none of them amounted to a breach of section 13(1) of the Public Service Act. In the opinion of the Merit Protection Commissioner, to say to a client that he too had no confidence ‘in the system’ would tend to bring the agency into disrepute and would therefore be a breach of section 13(11) of the Act rather than of section 13(1) or 13(5).

Next, as the applicant had previously been specifically directed to treat clients with respect and courtesy—see sections 13(3) and (5), when he spoke inappropriately to a client he breached these two sections but not section 13(1) as this did not involve an obvious lack of honesty or integrity. For the same reason, when he displayed inappropriate behaviour towards a client by being abrupt and cutting them off, this too was a breach of sections 13(3) and 13(5), and not of section 13(1).

In relation to inappropriately transferring clients’ calls, there was no evidence that the applicant was previously directed about how to transfer or not transfer clients’ calls. Also, there was no obvious connection between ‘failing to apply the relationship management model’ and lacking honesty or integrity, or evidence that the applicant was previously directed to apply that model. In Phillips v Disciplinary Appeal Committee (1994) 34 ALD 758, the Federal Court said that if an agency wanted to issue a binding instruction or direction this could not be done by issuing a circular described as ‘policies, procedures or guidelines’. For a document to be a binding direction, it must be expressed as such:

The word ‘instruction’ … should be confined to such commands as are unequivocally intended to create new legal obligations … [An instruction] should be tightly drafted, using the language of command throughout, and specifying exactly what actions officers should, and should not, take.

However, section 13(2) requires APS employees to act with care and diligence in the course of their employment. Consequently, to act contrary to the relevant procedures may be a breach of section 13(2), rather than of section 13(1) or 13(5). Similarly, while there is no obvious connection between being late for work and being dishonest or lacking integrity, frequent lateness for work may be incompatible with acting with care and diligence in the course of one’s employment and, in the applicant’s case, was also directly contrary to a direction given to him on 19 November 2002. In other words, the applicant’s frequent lateness for work amounted to breaches of sections 13(2) and 13(5) of the Act, but not of section 13(1).

For the above six breaches, the agency imposed the following three sanctions on the applicant—a reprimand; deduction from salary, by way of fine, of $300 (or $50 for each breach); and reduction in salary, to the first salary point of the APS 3 classification ($38,743 a year). The full rationale for these sanctions was:

The determination and sanction that follows are intended to protect the public and to maintain proper standards of conduct by members of the Australian Public Service and to protect the reputation of the Australian Public Service. Given that the breaches occurred over a period of approximately 3 months, I believe a cumulative sanctioning approach should be taken as a deterrent for future breaches occurring.

While there may be no legal impediment to imposing more than one sanction in a case of proven misconduct, the person imposing the sanction must be satisfied that more than one sanction is appropriate in the circumstances of the case and give proper reasons for their decision. Secondly, where sanctions for more than one breach are being imposed concurrently, the decision-maker should, after deciding what sanction is warranted in relation to each breach, consider whether the total effect is not disproportionate to the seriousness of the breaches considered as a whole—in other words, apply what the courts call the totality principle.

In this case, there was no indication of why the agency considered that, in addition to the reprimand, the applicant’s breaches warranted both a fine and a reduction in salary or whether they considered the total effect of the three sanctions on the applicant (apparently about $4,000 over three years). In the circumstances of the case, including that the allegation that the applicant had not behaved ‘honestly and with integrity’ had not been substantiated, monetary sanctions exceeding $4,000 seemed excessive. Instead, the maximum fine allowed under Public Service Regulation 2.3 (2% of his annual salary) was recommended as being more appropriate.

Outcome

The applicant’s agency varied the decisions as recommended by the Merit Protection Commissioner, both in relation to the breaches and in relation to the sanctions.

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Travelling allowance—What is a ‘dependant’?

Application

An APS employee applied for secondary review by the Merit Protection Commissioner of the decision that she was not eligible for an allowance to cover meals and incidentals while undertaking a training course interstate for about three months, on the basis that she was an employee without dependants. Her dissatisfaction with the decision appeared to centre on the definition of the term ‘dependant’ in the relevant certified agreement. The definition included ‘the employee’s partner’ but, unlike the previous certified agreement in the same agency, did not specifically require that person to ordinarily reside with the employee. However, a related policy document contained more comprehensive definitions of the relevant terms including:

‘dependant’ as including (that is, in addition to certain children and parents of the employee) the partner of the employee who ordinarily resides with them
‘employee with dependants’ as meaning an employee who has one or more dependants, one or more of whom is, or are, residing with the employee.

Review

Originally, the applicant did not list any dependants on her claim form and the agency processed her travelling allowance as an employee without dependants. When she later claimed that another employee in the same agency was her partner, the fact that each of them was maintaining separate residences was taken into account in deciding that his circumstances did not satisfy the definition of ‘dependant’. Later, the applicant said that exchanging house keys and sharing holiday costs (as also good friends might do) were consistent with a marriage-like relationship between her and the other person and, also, that the Family Law Act 1975 defines a de facto relationship as:

the relationship between a man and a woman who live with each other as spouses on a genuine domestic basis although not legally married to each other.

Having considered the matter, the Merit Protection Commissioner concluded that the reported nature of the relationship in question did not support a case for the applicant being paid an additional allowance to cover meals and incidentals, based on the other person being her ‘dependant’. Briefly put, the reasons for his conclusion were that:

consistent with general community practice and the common law, the definition of ‘dependant’ in the certified agreement at least implicitly referred to marriage partners, de facto or de jure, who usually resided with each other
consistent with that interpretation, the relevant clause said:

[The agency] is committed to providing a range of entitlements to assist in meeting reasonable associated costs to employees who are required to travel within Australia and perform duty away from their usual place of work;

and that employees with ‘dependants’ will be entitled to an allowance to assist in the cost of meals and incidentals

while such assistance is generally provided to offset some of the costs that may be incurred because of joint household commitments, it had not been demonstrated that, at the relevant time, the applicant and the other person were sharing such costs and commitments on an ongoing basis, particularly in the light of their maintaining separate residences
consequently, assuming that was relevant, there was also insufficient evidence that she and he were ‘living with each other as spouses on a genuine domestic basis’ within the meaning of the definition of a de facto relationship in the Family Law Act 1975.

Outcome

As recommended by the Merit Protection Commissioner, the applicant’s agency confirmed the decision under review.

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Break in employment—Salary on re-engagement after three months

Application

An APS employee applied for secondary review by the Merit Protection Commissioner of the decision relating to her commencing salary when, after an interval of about three months, she was re-employed by her agency.

Review

The applicant commenced work with the agency in March 1997. Until July 2002 when she left the agency, she was employed at Band 2, pay point 8 (B208).

After about three months, in October 2002, the applicant was re-employed by the agency, first as a non-ongoing employee, at Band 2, pay point 1 (B201). Then, in December 2002, her salary was increased to pay point 3 (B203). The Merit Protection Commissioner was advised that this decision was based on the need to pay more to be able to attract and retain people for short periods in jobs with little or no job security, rather than on the applicant’s level of performance. Subsequently, in January 2003, the applicant was re-employed as an ongoing employee; going back to Band 2, pay point 1 (B201). By that time, a new certified agreement was in place. The new certified agreement required employees to obtain a Certificate IV to be able to advance to and beyond Band 2, pay point 6 (B206).

As at the time of the review, the applicant was on pay point 5 (B205), having re-negotiated that salary level from May 2003.

The outcome the applicant sought from the secondary review was to renegotiate her salary, from October 2002, at her old July 2002 salary (B208) on the grounds that:

she was out of the agency for only about three months before coming back as a non-ongoing employee—this was not long enough for her to lose her skills
her skills and experience were again not appropriately recognised when she was later re-engaged, at the bottom of the relevant salary range, as an ongoing employee
it would take at least three years to work her way up to her former pay level, including about a year to complete Certificate IV and this would probably take the rest of her working life.

In the opinion of the Merit Protection Commissioner, the main issue for consideration in this case was whether it would have been appropriate for the agency to authorise a higher salary for the applicant when she returned to the agency in October 2002 or at a later date. The relevant certified agreement provided that:

When an APS employee commences with [the agency] from outside the APS, salary will be payable at the minimum point in the salary range applicable to the classification of the job unless the CEO or Delegate authorises a higher pay point, having regard to experience, qualifications and skills of the employee.

Also, noting that the agency was able to re-negotiate an employee’s salary at any time following their commencement, to warrant such reconsideration regard needed to be had to experience, qualifications and skills of the employee—in this case, the applicant’s experience and skills as at October 2002 when she was re-employed by the agency. As at that date, she had been absent from the agency for some three months only. She had significant prior experience of working at a higher level and this experience was similar in nature to her new duties. Her performance had been rated as either excelling in many areas or meeting expectations for someone employed at Band 2, pay point 8 (B208).

In all the circumstances of the case, considering the applicant’s skills and experience and that there was no evidence that these had materially degraded during the three months of her absence from the workplace—and that she does not hold a Certificate IV, the Merit Protection Commissioner concluded that the preferable decision when she was re-employed in October 2002 would have been to pay her neither at her old salary level (B208), nor at the bottom of the relevant salary range (B201), but at pay point 5 (B205) which does not require that certificate.

Outcome

For these reasons, the Merit Protection Commissioner recommended on 20 July 2005 that the applicant’s salary for the period October 2002 to May 2003 be varied to Band 2, pay point 5 (B205).

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Excess employee—Reduction in classification—decision of no effect because mandatory procedures not followed

Application

An APS employee applied for secondary review by the Merit Protection Commissioner of a decision relating to his classification. He was an excess APS 4 employee who declined an offer of voluntary redundancy from his agency. Subsequently, the agency found him an APS 3 job and reduced his classification from APS 4 to APS 3.

Review

On review, it was established that:

before making the abovementioned decision, the agency did not appear to have complied with all relevant provisions of its certified agreement—in particular, on or after 18 June 2004, with clause 250 of the agreement the effect of which was to require the agency to provide the applicant with a ‘skilled, suitable mentor’, preferably after conferring with the applicant as to suitable candidates
under the certified agreement, such mentors were required to ‘be an advocate for the employee and ensure fair treatment from [the agency]’
the mentor ostensibly, retrospectively provided by the agency (without the applicant’s consent or knowledge) could not be said to have been ‘suitable’ (he represented the agency’s management, drafted the voluntary redundancy letter and was involved in the decision to reclassify the applicant)
consequently, given section 23(5) of the Public Service Act:

If a relevant award, certified agreement or AWA contains procedures to be followed when reducing the classification, then a reduction is of no effect unless those procedures are followed;

the decision under review seemed to have been of no effect.

For these reasons, the Merit Protection Commissioner formally recommended that the decision in question be set aside and substituted by a new action; for example, the relevant process could be recommenced from where it was on 18 June 2004. In the meantime, the applicant’s classification continued to be APS 4 until and unless a new, valid decision was made to reduce it.

Outcome

The agency accepted the Merit Protection Commissioner’s recommendation.

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